29 Mich. 515 | Mich. | 1874
The company sued in assumpsit before a justice, to recover pay for the carriage of a quantity of live pigeons. The defense actually interposed was a counter claim that tbe plaintiffs misconducted in the affair, and thereby caused the defendants damage.
The pleadings appear to have been very informal. The printed record represents that the declaration was merely
In the progress of the trial the actual issue was developed. The parties elected on what ground the case should he rested. They seem to have made no question whatever, until the evidence was closed, about the character in which the company acted, but directed their attention exclusively to the imputed fault in the carriage. The whole proof appears to have been aimed that way, and other matters seem to have been pretermitted as not in contest. The fact of carriage was not disputed at all, and there was no disagreement about the sum charged. The evidence showed that there was much delay along the route adopted, on account of the misconnection of trains, and that the birds were not properly fed and watered, if at all, and were not handled and treated as they should have been. "When they reached Detroit a great many were dead.
After the evidence was all in, and when the court came to charge, the company advanced the claim that they worked as common carriers, and that in view of the principles laid down in McDonough’s case, 21 Mich., 190 and Perkins’ case, 25 Mich., 829, touching the liability connected with the carriage of live animals, they were entitled to the' charges
There is no basis in the record to uphold the theory they involve. We have no data to justify the assumption that the plaintiffs worked in this business in the character of common carriers, and if a finding that they did so would be sufficient to sustain the exceptions, a point not considered, there is nothing to authorize it. We cannot find error when in order to do so we have something to predetermine for which the record affords no warrant. The matters in the case are quite consistent with the supposition that in fact the plaintiffs assumed to act in this instance as ordinary bailees for hire, and if they did not, but in the character of common carriers, and thought that circumstance of importance to avert liability, it was incumbent upon them to see to it that in some form the evidence of their true character was brought into the record. The exceptions founded on the exclusion of the first, second and fourth requests do not raise the points contemplated by them, or any points upon the merits.
Complaint is made of remarks of the court on refusing to give these and other requests. They were calculated, it is said, to lead the jury to understand that the plaintiffs subjected themselves to the extreme duty and liability of common carriers, and were responsible to the same extent, and for the like risks.
The rulings made and remarks in question are not so understood. The whole proceedings must be taken together, and as they occurred before, and appeared to the jury. The pleadings and evidence, as before stated, were silent respecting the character assumed by the plaintiffs.
The third and fifth of the plaintiff’s requests were given.
The seventh and last desired a charge that the company were not required to feed and water the birds, in the absence of an agreement to do so. This was refused, and the jury were allowed to consider the fact of not feeding and watering as one among others going to show actionable fault. The claim of negligence in this case, and especially in view of the cast the parties gave to the litigation, was one very suitable to be decided by a jury on all the facts. The imputed grievance, in its own nature and in the circumstances about it, was marked by specific peculiarities, and it could hardly be dealt with in any other way. And the plaintiffs themselves seem to have been of that opinion, since in their sixth request, before quoted, they contemplated going ‘to the jury on the evidence of negligence. Considering the color of the transaction, the connection and import of the facts and the shape given to the litigation by the parties, the court was justified in leaving the question to the jury. — Detroit & M. R. R. Co. v. Van Steinburg, 17 Mich., 99; Lake S. & M. S. R. R. Co. v. Miller, 25 Mich., 274; Maynard v. Buck, 100 Mass., 40; Viner v. Steamship Co., 50 N. Y., 23; R. R. Co. v. Stout, 17 Wall., 657; Gee v. The Metropolitan R. Co., L. R., 8 Q. B., 161, 5 Eng. R., 169; Beck v. Evans, 16 East, 244 ; Martin v. The Great Northern Railway Co., 30 E. L. & E., 473.
The omission to feed and water the birds when under the sole care and charge of the plaintiffs during the length of time which elapsed, and in the existing state of things, was closely connected with the other facts, and indeed one of the combination of facts bearing on the question of negligence, and it is not perceived how it could be rightly separated and submitted under a distinct and positive direc
In suing in the way they did, the plaintiffs affirmed in substance, that in carrying the birds they acted as hired carriers, and by this they were bound. They did not, however, affirm in terms, whether they so acted as common carriers •or as ordinary bailees for hire. Hence they did not certainly put themselves on the record as common carriers.
The defendants, in bringing forward their counter claim in the nature of a cross-action, were equally inexplicit. No •evidence was given that the plaintiffs acted as common carriers in regard to this transaction, or, even that their general calling was that of common carriers; and both parties passed by that subject and applied themselves to the question of negligence on the facts.
Hnder these circumstances, and in view of their undertaking as they chose to lay it, the plaintiffs cannot complain
The court was not requested, and did not attempt to define the degree of care demandable of the plaintiffs, and no question is raised on that ground. The whole evidence was submitted broadly to the jury on the question of negligence, and in view of the facts, no reason is perceived for thinking that the verdict was a miscarriage. Where the parties elect to go to trial upon general and informal allegations, and to carry on their controversy upon some point or points of difference tacitly understood, we are extremely averse to the application of technical rules, and are not disposed to favor a reversal, if satisfied that the merits were allowed to be 'fairly tried. — Willard v. Bridge, 4 Barb., 361; Stillson v. Sanford, 3 Caines, 174; Kline v. Husted, ib., 275.
We cannot say in this case that the plaintiffs were prejudiced.
The judgment should be affirmed, with costs.